The emergency amendments amend Title 14 NYCRR Subpart 635-11 to allow individuals, who lack capacity and a guardian, the ability to be enrolled in FIDA-IDD plans. The regulations must be filed on an emergency basis to ensure that individuals eligible for FIDA-IDD plans are not unfairly precluded from participation in cross-system care coordination that will meet their needs.

The regulations specify rules concerning who can enroll beneficiaries or individuals in a Medicare Part D prescription drug plan or in a Medicare Advantage plan with prescription drug coverage and who can pursue grievances, complaints, exceptions and appeals in such plans.

The regulations specify that a complaint can be submitted to the quality improvement organization or to federal or state government regulatory agencies.

The regulations specify the definition of “act in the FIDA-IDD plan review process.”

The regulations add the definitions of enroll and enrollment, FIDA-IDD and FIDA-IDD plan, party, and PDP.

The regulations specify that for the purposes of this section only, if the person’s residential facility is operated by OPWDD, the CEO of the agency is the director of the DDSOO that operates the residential facility.

The regulations specify that if a CEO or designee enrolls a person into a PDP, he or she shall give written notice to, among others, the person’s Medicaid service coordinator or other person identified as that person’s care coordinator.

The regulations specify that if the agency or sponsoring agency does not agree with the request for a different PDP, the agency or sponsoring agency shall, among other things, inform the advocate or correspondent that he or she may appeal in writing to the DDRO director for the region within which the person’s residential facility is located if the residential facility is not operated by OPWDD. The regulations also specify that if the person’s residential facility is operated by OPWDD, then the notice shall inform the advocate or correspondent that he or she may appeal in writing to the director of the DDSOO that operates that residential facility.

The regulations create a new Section that deals with the FIDA-IDD enrollment and reviews for persons residing in a residential facility operated or certified by OPWDD or a family care home and a new section that deals with FIDA-IDD Plan enrollment and reviews for persons not residing in a residential facility or family care home.

The regulations specify that a person may enroll himself or herself into a FIDA-IDD Plan or appoint another party to enroll him or her. A person may act in the FIDA-IDD review process for himself or herself or appoint another party to act in the FIDA-IDD review process for him or her.

The regulations specify that if a person lacks the ability to choose a FIDA-IDD plan or act in the FIDA-IDD review process, a guardian lawfully empowered to enroll a person in a FIDA-IDD plan may enroll the person in a FIDA-IDD Plan or appoint another party to enroll the person.

The regulations specify that if an appointed party or guardian is unwilling or unavailable to enroll the person or act in the FIDA-IDD review process then an actively involved spouse, an actively involved parent, an actively involved adult child, an actively involved adult sibling, an actively involved adult family member, or the Consumer Advisory Board for the Willowbrook Class (only for class members it fully represents) may act in the FIDA-IDD review process or appoint another party to act in the FIDA-IDD review process.

The regulations specify that if the person resides in a residential facility the chief executive officer (CEO) of the agency operating the person’s residential facility or sponsoring the family care home, or designee of the CEO, may enroll the person or act in the FIDA-IDD review process. If the person does not reside in a residential facility, the CEO (or designee) of the agency providing service coordination for the person, may enroll the person or act in the FIDA-IDD review process. If the CEO enrolls the person in the FIDA-IDD plan or acts in the FIDA-IDD review process, he or she shall give written notice of such enrollment to the person’s correspondent or advocate, the person’s Medicaid service coordinator, or other person identified as that person’s care coordinator, or the director for the region encompassing the person’s residence.

The regulations create a new Section that deals with other responsibilities and rights of agencies and sponsoring agencies regarding PDP enrollment and reviews.

The regulations specify that no CEO, officer, designee, or employee of an agency or sponsoring agency shall solicit, accept or receive from a PDP, pharmacy or contractor of a PDP or pharmacy, for personal use or benefit any payment, discount, or other remuneration in consideration of, or as a result of, enrolling the person in a PDP.

The regulations specify that no CEO, officer, designee, or employee of an agency or sponsoring agency shall charge, accept or receive payment from the person, family, or anyone else for enrolling the person in a PDP, providing advice and assistance in choosing a PDP or for acting for the person in the Part D review process.

The regulations specify that when a CEO or designee is acting in the Part D review process, the CEO or designee may appoint a party outside of the agency to act in the Part D review process for the person.

The regulations specify that when a CEO or designee enrolls a person he or she shall choose a PDP based on the best interests of the person.

The regulations create a new Section that deals with other responsibilities and rights of CEOs and DDSOO and DDRO directors or designees regarding FIDA-IDD plan enrollment and reviews.

The regulations specify that no CEO, DDRO or DDSOO director or designee shall solicit, accept or receive from a FIDA-IDD plan operator, or an agent of the plan, for person use or benefit any payment, discount or other remuneration in consideration of, or as a result of, enrolling the person in a FIDA-IDD plan.

The regulations specify that no CEO, DDRO or DDSOO director or designee shall charge, accept or receive payment from the person, family or anyone else for enrolling the person in a FIDA-IDD plan, for providing advice, and assistance in choosing a FIDA-IDD plan or for acting for the person in the FIDA-IDD review process.

The regulations specify that when a CEO, or DDRO or DDSOO director is acting in the FIDA-IDD review process for a person, the director or designee may appoint a party outside of the agency to act in the FIDA-IDD review process for the person.

The regulations specify that when a CEO, or DDRO or DDSOO director or designee enrolls a person in a FIDA-IDD plan or acts in the FIDA-IDD review process for a person he or she shall act based on the best interests of the person.

The regulations specify nothing in this Subpart shall diminish or remove the authority of a physician to request a coverage determination or an expedited redetermination on behalf of a beneficiary.

1. Statutory Authority:

a. OPWDD has the statutory responsibility to provide and encourage the provision of appropriate programs, supports, and services in the areas of care, treatment, habilitation, rehabilitation, and other education and training of persons with developmental disabilities, as stated in the New York State (NYS) Mental Hygiene Law Section 13.07.

b. OPWDD has the authority to adopt rules and regulations necessary and proper to implement any matter under its jurisdiction as stated in the NYS Mental Hygiene Law Section 13.09(b).

c. OPWDD has the authority to plan, promote, establish, develop, coordinate, evaluate, and conduct programs and services for prevention, diagnosis, examination, care treatment, rehabilitation, training, and research for the benefit of individuals with developmental disabilities and has the authority to take all actions necessary, desirable, or proper to implement the purposes of the Mental Hygiene Law and to carry out the purposes and objectives of OPWDD within available funding, as stated in the NYS Mental Hygiene Law Section 13.15(a).

d. OPWDD has the statutory authority to adopt regulations concerned with the operation of programs and the provision of services, as stated in the NYS Mental Hygiene Law Section 16.00.

2. Legislative Objectives: The emergency/proposed regulations further legislative objectives embodied in sections 13.07, 13.09(b), 13.15(a) and 16.00 of the Mental Hygiene Law. The regulations authorize certain parties to enroll individuals in the Medicare Prescription Drug Plans and Fully Integrated Duals Advantage Plans for Individuals with Intellectual and Developmental Disabilities (FIDA-IDD) when the individuals lack capacity to enroll themselves. FIDA-IDD plans provide enhanced care coordination for individuals who need coordination of both Medicare health benefits and Medicaid developmental disability services.

3. Needs and Benefits: The emergency/proposed regulations amend Title 14 NYCRR Part 635-11 to allow individuals to be enrolled in a FIDA-IDD plan, through certain parties, in situations where there is no other to make that election for them, such as lack of a guardian or incapacity. Without such action, individuals would not have the opportunity to enroll in this program

The emergency/proposed regulations also make ministerial amendments to the Part D enrollment and review process to capture OPWDD’s current organizational structure.

The emergency/proposed regulations in 635-11.4 pertain to individuals who reside in a residential facility operated or certified by OPWDD, or a family care home. That section would allow a surrogate to enroll an individual in a FIDA-IDD plan or to participate in the FIDA-IDD plan review process, if that individual did not have the capacity to enroll himself or herself. The section sets forth a hierarchy of individuals that may serve as a surrogate for these purposes, which includes an actively involved spouse, parent, adult child, adult sibling, adult family member or the Consumer Advisory Board for the Willowbrook Class (for class members only). In all other situations, the CEO of the agency that operates the individual’s residence may enroll an individual and act on their behalf in the FIDA-IDD plan review process. For individuals residing in a facility operated by OPWDD, the CEO of the agency is deemed to be the director of the Developmental Disabilities State Operations Office that encompasses the location of the residence. This section also places notification requirements on a CEO that enrolls an individual in a FIDA-IDD plan.

The emergency/proposed regulations in 635-11.5 pertains to those individuals not residing in an OPWDD-certified or operated residential facility or family care home. That section would also allow a surrogate to enroll an individual in a FIDA-IDD plan or to participate in the FIDA-IDD plan review process, if that individual did not have the capacity to enroll himself or herself. The section sets forth a hierarchy of individuals that may serve as a surrogate for these purposes, which includes an actively involved spouse, parent, adult child, adult sibling, adult family member, or the Consumer Advisory Board for the Willowbrook Class (for Class members only). In all other situations, the CEO of the agency that provides service coordination for the individual may enroll an individual and act on their behalf in the FIDA-IDD plan review process. This section would also impose notification requirements when a CEO enrolled an individual in a FIDA-IDD plan.

The emergency/proposed regulations in 635-11.7 adds rights and responsibilities of CEOs, DDSOO and DDRO directors and designees regarding FIDA-IDD plan enrollment and reviews.

4. Costs:

a. Costs to the Agency and to the State and its local governments: There is no anticipated impact on Medicaid expenditures as a result of the emergency/proposed regulations. The regulations merely allow individuals to be enrolled in a FIDA-IDD plan, through certain parties, in situations where there is no other to make that election for them, such as lack of a guardian or incapacity.

These regulations will not have any fiscal impact on local governments, as the contribution of local governments to Medicaid has been capped. Chapter 58 of the Laws of 2005 places a cap on the local share of Medicaid costs and local governments are already paying for Medicaid at the capped level.

There are no anticipated costs to OPWDD in its role as a provider of services to comply with the new requirements. The emergency/proposed regulations may result in cost savings because individuals affected by the regulations will not have to seek guardianship to participate in the FIDA-IDD plan.

b. Costs to private regulated parties: There are no anticipated costs to regulated providers to comply with the emergency/proposed regulations. The amendments merely allow individuals to be enrolled in a FIDA plan, through certain parties, in situations where there is no other to make that election for them, such as lack of a guardian or incapacity.

5. Local Government Mandates: There are no new requirements imposed by the rule on any county, city, town, village; or school, fire, or other special district.

6. Paperwork: Providers will not experience an increase in paperwork as a result of the emergency/proposed regulations.

7. Duplication: The emergency/proposed regulations do not duplicate any existing State or Federal requirements on this topic.

8. Alternatives: OPWDD did not consider any other alternatives to the emergency/proposed regulations. The regulations are necessary to allow individuals to be enrolled in a FIDA plan, through certain parties, in situations where there is no other to make that election for them, such as lack of a guardian or incapacity.

9. Federal Standards: The emergency/proposed amendments do not exceed any minimum standards of the federal government for the same or similar subject areas.

10. Compliance Schedule: OPWDD is planning to adopt the emergency/proposed amendments as soon as possible within the timeframes mandated by the State Administrative Procedure Act. The proposed regulations were discussed with and reviewed by representatives of providers in advance of this proposal. OPWDD expects that providers will be in compliance with the emergency/proposed requirements at the time of their effective date.

A regulatory flexibility analysis for small businesses and local governments is not being submitted because these amendments will not impose any adverse economic impact or reporting, record keeping or other compliance requirements on small businesses. There are no professional services, capital, or other compliance costs imposed on small businesses as a result of these amendments.

The emergency/proposed regulations amend Title 14 NYCRR Subpart 635-11 to allow individuals to be enrolled in a FIDA-IDD plan, through certain parties, in situations where there is no other person to make that election for them, such as lack of a guardian or incapacity. The amendments will not result in costs or new compliance requirements for regulated parties and consequently, the amendments will not have any adverse effects on providers of small business and local governments.

A Rural Area Flexibility Analysis for these amendments is not being submitted because the amendments will not impose any adverse impact or significant reporting, record keeping or other compliance requirements on public or private entities in rural areas. There are no professional services, capital, or other compliance costs imposed on public or private entities in rural areas as a result of the amendments.

The emergency/proposed regulations amend Title 14 NYCRR Subpart 635-11 to allow individuals to be enrolled in a FIDA-IDD plan, through certain parties, in situations where there is no other person to make that election for them, such as lack of a guardian or incapacity. OPWDD expects that providers will be in compliance with the emergency/proposed requirements at the time of their effective date. The amendments will not result in costs or new compliance requirements for regulated parties and consequently, the amendments will not have any adverse effects on providers in rural areas and local governments.

A Job Impact Statement for the emergency/proposed amendments is not being submitted because it is apparent from the nature and purposes of the amendments that they will not have a substantial adverse impact on jobs and/or employment opportunities.

The emergency/proposed regulations amend Title 14 NYCRR Subpart 635-11 to allow individuals to be enrolled in a FIDA-IDD plan, through certain parties, in situations where there is no other person to make that election for them, such as lack of a guardian or incapacity. The amendments will not result in costs, including staffing costs, or new compliance requirements for providers and consequently, the amendments will not have a substantial impact on jobs or employment opportunities in New York State.